Monday, December 3, 2007

All About Curfew

During the medieval age, a CURFEW signifies the ringing of a bell at fixed time in the evening as an order to cover the hearths (fireplace) and prepare for sleep. The intention was to prevent the untended fires from conflagrations. The definition of curfew had however been expanded by modern writers. The modern extended sense of "periodic restriction of movement" had evolved by 1800s.

In the Philippines, the imposition of curfew by parents, especially on minor children, has been in our culture as far as memory could recall. It used to be a family affair without any interference from the State. The duty to enforce curfew regulations devolved upon the parents or guardians. When I was little I remember we were forbidden to be in the streets at a prescribed time. We obediently adhered to the rules for fear of parental reprimand or corporal punishment. In our neighborhood no minors were allowed to stay outdoors before the stroke of midnight. That’s how disciplined we were scores of years ago.

On 22 September 1972, however, the cultural context of curfew had changed. Marcos, who both wielded executive and legislative powers, had criminalized curfew. The late dictator issued General Order No. 4 ordering the enforcement of a curfew throughout the Philippines between the hours of twelve midnight and four o’clock in the morning during which no person shall be allowed to move outside his or her residence unless he or she is authorized in writing to do so by the military commander-in-charge.

Not contended, he promulgated Presidential Decree No. 603 on 10 December 1974 enjoining all city or municipal councils to prescribe curfew hours for children as may be warranted by local conditions.

With the lifting of Martial Law years later, the curfew imposed upon all persons had automatically been revoked. But PD 603 had remained in force. In fact, it has been so until now as this law has not been repealed.

Under our present legal system, is the imposition of a curfew legal? Yes, PD 603 allows it subject to certain conditions, which are : 1) the curfew hours shall be imposed upon minors only, 2) a local ordinance imposing a curfew shall be enacted, and 3) it is warranted by local situations.

Was GMA’s imposition of curfew upon ALL PERSONS in Manila and Regions 3 and 4-A on 29 November 2007 legal? Here are the views of some of our noted lawyers on the legality of curfew imposition.

1. As an inherent and extraordinary power of the State, police power is exercised through legislation. A curfew imposed without any law or legal order is illegal and unconstitutional. (Atty. Theodore Te)

2. The President has no authority to curtail freedom of movement. Also, such a directive needs to be in writing and has to be published. (Atty. Marichu Lambino).

3. The curfew imposition is unlawful and contrary to the Constitution — our right to liberty, our right to travel, our constitutionally guaranteed rights that cannot be curtailed or disregarded by executive order. Even curfews imposed in town and barangays need local ordinance. (Sen. Francis Pangilinan)

xxxx there are two legal questions that should be addressed: (1) Can the President impose a curfew without any delegation of powers from Congress?; and (2) If such delegation is not required and the imposition of curfew is authorized under the Commander-in-Chief powers of the President, did the President comply with the constitutional requirements (the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power)?

Personally, I feel the recent curfew was imposed without clear legal basis. There’s no law empowering the President to impose curfew on ALL PERSONS. What we have is curfew regulations on minors only. GMA had consciously overstepped the limitations of her constitutional powers at the expense of curtailing our freedom to travel and move outside our home; our freedom to watch last full show movie at SM cinema, our liberty to listen to music at a nearby bar, our freedom to enjoy our friends' birthdays and etc. Even under her commander-in-chief powers she has no authority to impose curfew on all citizens. A curfew on ALL PERSONS can only be imposed if there is a law enacted by Congress to that effect delegating to the President the police power to executive the same.

Obviously, GMA treated the curfew imposition as a test case. The curfew has ruffled a lot of feathers but no one has lifted a finger to question its legality before the Supreme Court. Unless the curfew is judicially challenged, GMA may reimpose it again and again. Some may say the complaint will not prosper because the curfew was already lifted and, therefore, it is now moot and academic. I disagree. The Supreme Court will not render the complaint moot and academic. Said the Supreme Court in Randolf David vs. Arroyo :

The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

Ergo, will someone rise and judicially challenge the legality of GMA’s curfew imposition?

33 comments:

I am not in a position to check the legality of that controversial imposition of curfew as I am a mere common tao so to speak. What I saw was the Commander in Chief responding to the call of the incident and contained the situation in such a way it wont spill over the following day so the Filipino people can continue with their normal life. We had enough of these. Did she stepped over board? So be it, as long as she was able to protect the entirety of the nation. Will she do it again, yes, she will.

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